Summary
Reversing the High Court's acquittal, the Supreme Court restored a husband's conviction under Sections 302 and 201 IPC for killing his wife at home and secretly cremating her at night. The seven-year-old daughter's eyewitness account was wrongly discarded as tutored merely because her police statement was recorded 18 days late and she lived with a maternal relative. The Court laid down tests for child and tutored testimony and held that the proved circumstances shifted the burden to the accused under Section 106 of the Evidence Act.
Issues
- Whether the High Court was right in rejecting the testimony of the seven-year-old daughter (PW6) as tutored because of an 18-day delay in recording her Section 161 CrPC statement and her residence with a relative hostile to the accused.
- What tests govern the appreciation of a child witness's evidence and the determination that testimony is tutored.
- Whether the circumstances proved by the prosecution were enough to invoke Section 106 of the Evidence Act against the accused husband, who offered no explanation for his wife's death.
Provisions considered
- Section 118, Indian Evidence Act, 1872No minimum age is prescribed; a child is competent if able to understand questions and give rational answers. The Court required a preliminary examination by the trial court, with its questions, the child's answers and demeanour, and the court's satisfaction recorded. (¶¶ 26, 27, 28, 58)
- Section 165, Indian Evidence Act, 1872Even if the defence failed to ask the Investigating Officer about the delay in examining a witness, the trial judge should have put that question under this power rather than remain a mute spectator. (¶¶ 42, 43)
- Section 162 CrPC read with Section 145 Evidence Act, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872Where tutoring takes the form of improvisation, it must be shown by confronting the witness with the relevant part of the earlier police statement and, if the witness denies it, proving the contradiction through the Investigating Officer. (¶¶ 51, 58)
- Section 106, Indian Evidence Act, 1872An exception to Section 101 that does not relieve the prosecution of its burden; it applies once the prosecution proves foundational facts from which a reasonable inference of guilt arises, after which the accused's silence or false explanation may complete the chain. Applied to a death inside the matrimonial home. (¶¶ 66, 67, 68, 75, 76, 77, 80, 82, 88, 89)
- Sections 302 and 201 read with Section 34, Indian Penal Code, 1860The trial court's conviction for murder and for causing disappearance of evidence, with its sentence of life imprisonment and four years' rigorous imprisonment, was restored. (¶¶ 1, 21, 91)
Held
- A child witness found competent stands on the same footing as any other witness. There is no rule that the child's evidence must be corroborated; corroboration is a rule of prudence, called for where the evidence appears tutored or has material discrepancies. A confidence-inspiring child's testimony without embellishment may alone found a conviction. (¶¶ 35, 58)
- Delay in recording a witness's police statement is material only if it suggests unfair practice to introduce a got-up witness, and the Investigating Officer must be asked to explain it. Here no question was put, the daughter's statement was recorded the same day as her grandfather's, and the delay reflected investigative inertia, not a design to tutor her. (¶¶ 39, 40, 41, 43, 44)
- Her testimony could not be discarded because she lived with her maternal relatives, who were hostile to the accused: after her mother's death and her father's absconding, she had nowhere else to go. Courts should deal with such cases realistically and not reject evidence on technicalities or insignificant lacunae. (¶ 45)
- That the inquest record noted her saying only that her mother had died did not prove later tutoring, since the inquest report and the FIR already recorded her account of the accused killing the deceased. Non-production of her inquest statement, never sought by the defence, did not show it was unfavourable, and the late arrest was explained by the accused absconding. (¶¶ 47, 48, 49)
- Tutoring may show as improvisation or fabrication. Improvisation must be proved through contradiction with the earlier statement in the manner prescribed. To reject testimony as fabricated, the defence must establish both an opportunity for tutoring (for example delay, doubtful presence, motive or susceptibility), and not by bald assertion, and a reasonable likelihood of tutoring cogently substantiated by evidence. (¶¶ 50, 51, 52, 53, 54, 58)
- A child who withstands lengthy cross-examination and describes the crime in detail is not discredited by minor discrepancies or by repeating parts of what she was told; even a tutored statement may be relied on in its untutored part if that part inspires confidence. The trial court, having watched PW6 under about 1.5 hours of cross-examination, rightly believed her, and the High Court committed an egregious error. (¶¶ 36, 37, 58, 59)
- Section 106 cannot make up for the prosecution's failure to prove its case, and until a prima facie case is established the onus does not shift; but once foundational facts are proved, an accused who gives no explanation or a false one about facts especially within his knowledge furnishes a circumstance against himself. In crimes committed in secrecy within a house, the inmates must give a cogent explanation. (¶¶ 68, 72, 75, 76, 77, 80, 86, 87)
- The prosecution proved that the death occurred inside the house where the accused admittedly was, the body was secretly cremated at night without informing the deceased's family living in the same village, the accused fled leaving his young daughter, the couple's relations were strained with a fight days earlier, and the accused gave no explanation. These amounted to more than a prima facie case and shifted the burden to him under Section 106; the High Court failed even to consider that provision. (¶¶ 65, 66, 88, 89)
Result
Appeal by the State allowed; the High Court's acquittal set aside and the trial court's conviction under Sections 302 and 201 read with 34 IPC and sentence restored; the respondent directed to surrender within four weeks to serve the sentence.